Parker v. Parker (In re Parker's Estate)

• Decision Date: 07 March 1907
• Citation: 111 N.W. 119,78 Neb. 535
• Parties: IN RE PARKER'S ESTATE. PARKER v. PARKER.
• Court: Nebraska Supreme Court

78 Neb. 535

111 N.W. 119

IN RE PARKER'S ESTATE.PARKER

v.PARKER.

Supreme Court of Nebraska.

March 7, 1907.

Syllabus by the Court.

The provisions of the Code against the disclosure of confidential communications may be waived by the party in whose favor they were enacted, and the privilege of waiver extends to the personal representative of a deceased person.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Gage County; Kelligar, Judge.

In the matter of the estate of Almira T. Parker, deceased. Lewis C. Parker presented the will for probate, and, from an order confirming the same, Frank H. Parker appeals. Affirmed.J. E. Cobbey, G. M. Johnston, and Rinaker & Bibb, for appellant.

E. O. Kretsinger, F. M. Davis, and T. J. Doyle, for appellee.

JACKSON, C.

The contestant appeals from the judgment of the district court confirming the probate of a will. The principal contention is as to the sufficiency of the evidence to sustain the verdict and judgment.

The testator left two sons surviving her. She bequeathed her estate to an infant daughter of one son, the proponent. The contest is put upon the ground of undue influence and fraud of the proponent, and that the testator was incompetent. The evidence is voluminous, and includes the testimony of 60 or more witnesses, and it would be idle to review the testimony of each witness at length. The will was executed on the 22d day of September, 1900. The testimony of Dr. W. Frank Lee, a witness on behalf of the proponent, fairly reflects the evidence offered in support of the will. He had known the testator for about 10 years. He was treating her at about the time the will was executed, and until near the time of her death, which occurred in February following, and as to her condition said that she complained of neuralgia in her arm and shoulder, and connected with that slight spasms at times in the muscles of her neck and throat, which somewhat affected her articulation. Other than those local physical ailments she was as well physically as any old lady of her age, was able to converse and carry on an intelligent conversation, and mentally could direct her household affairs and make her wants known; and she was able to transact business and to make a will disposing of her estate on September 22, 1900. In that respect he was corroborated by two other physicians, who saw and treated her at about that time, household servants, neighbors, and friends who frequently were at her home. On the other hand, the evidence on behalf of the contestant seems to be fully as positive that at the time of the execution of the will the testator was suffering from a disordered mind and weakened physical condition, which incapacitated her for the transaction of any business, and rendered her entirely incompetent to make an intelligent disposition of her property.

The records of this court disclose this to be the second trial in the district court; the verdict and judgment on both occasions sustaining the will. It was stated in the oral argument that the proceedings in the probate court resulted in a similar judgment. Prominent counsel on either side have tried the case with the zeal and earnestness usually accompanying litigation of this character. We have carefully examined the 900 pages of evidence contained in the record, and are not prepared to say that the judgment is not supported by the weight of the evidence or that a different conclusion would be justified. Nor do we think that the will, under the circumstances, was an unnatural one. The estate descended originally from the father of the contesting parties and had been, to a very large extent, divided between the two sons. That portion...